`NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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`California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
`publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
`or ordered published for purposes of rule 8.1115.
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`COURT OF APPEAL, FOURTH APPELLATE DISTRICT
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`DIVISION ONE
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`STATE OF CALIFORNIA
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`
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`JAMES E. GIBBONS et al.,
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` D076703
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`Plaintiffs and Respondents,
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`v.
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`SILVERADO SENIOR LIVING
`MANAGEMENT, INC.,
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`
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`Defendant and Appellant.
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`
`
`
`
`
`
` (Super. Ct. No.
` 37-2019-00047592-CU-PO-CTL)
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`
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`
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`APPEAL from an order of the Superior Court of San Bernardino,
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`County, Donna G. Garza, Judge and San Diego County, Kenneth J. Medel,
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`Judge.1 Reversed and remanded with directions.
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`
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`Giovanniello Law Group and Alexander F. Giovanniello, Thomas C.
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`Swann, Cat N. Bulaon for Defendant and Appellant.
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`
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`Peck Law Group and Steven Charles Peck, Adam J. Peck, Spencer E.
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`Peck for Plaintiffs and Respondents.
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`1
`The petition to compel arbitration was heard in San Bernardino
`Superior Court, and Judge Garza’s tentative ruling denying the petition
`became her final order. The case was later transferred to the San Diego
`Superior Court.
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`
`
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`Appellant Silverado Senior Living Management, Inc. dba Silverado
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`Senior Living—Encinitas (Silverado)2 appeals from the trial court’s order
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`denying its petition to compel arbitration and motion to stay Gayle Gibbons’s
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`elder abuse and wrongful death lawsuit brought in her capacity as successor
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`in interest to James Gibbons, her deceased spouse,3 and in her own capacity.
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`The court concluded Gayle signed an arbitration agreement as James’s
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`representative; therefore, she retained a wrongful death claim in her
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`individual capacity. It exercised its discretion under Code of Civil Procedure4
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`section 1281.2, subdivision (c), to refuse to enforce the arbitration agreement,
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`reasoning the existence of Gayle’s separate claim posed a risk of inconsistent
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`judgments.
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`Silverado contends: (1) the arbitration agreement that Gayle signed as
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`James’s representative was also binding on Gayle individually, thus barring
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`her separate wrongful death claim; and (2) because the Federal Arbitration
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`Act (FAA) governs the arbitration agreement, the trial court lacked discretion
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`to stay arbitration of James’s and Gayle’s claims under section 1281.2,
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`subdivision (c). We conclude the court erred by denying the petition as to
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`James’s claims, which were governed by the arbitration agreement and the
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`FAA; however, it did not err by denying the petition as to Gayle’s individual
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`
`2
`The complaint names as codefendants Blossom Grove Management Ca,
`LLC dba Blossom Grove Alzheimer’s Special Care Center (Blossom) and
`Scripps Health dba Scripps Memorial Hospital—Encinitas (Scripps);
`however, they are not parties to this appeal.
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` 3
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` We refer to respondents by their first names to avoid confusion, and
`intend no disrespect.
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`Undesignated statutory references are to the Code of Civil Procedure.
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`2
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` 4
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`
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`claim. Accordingly, we reverse the order and remand with directions set
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`forth below.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`The Complaint
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`In her capacity as James’s successor in interest (§ 377.32) and on her
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`own behalf, Gayle sued all defendants for elder abuse (Welf. & Inst. Code,
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`§ 15600 et seq.). She also alleged causes of action against Silverado and
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`Blossom for wrongful death, and against Scripps and Doe defendants for
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`wrongful death by neglect (§ 377.60). She alleged that James, who was over
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`65 years of age, “developed scabies, MRSA [Methicillin-resistant
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`Staphylococcus Aureus], sepsis, pressure ulcers, and suffered extreme weight
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`loss” while in the care and custody of defendants, including Silverado, which
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`is an assisted-living or residential care facility.
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`Gayle further alleged that defendants “recklessly neglected [James] by
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`breaching their duties of care owed to [him] in failing to provide [him] with
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`the care and treatment to which he was entitled . . . failing to prevent the
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`development of infections, failing to report his change of condition and
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`providing timely care, failing to developing and implementing [sic] care
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`plans, failing to treat the infections, failing to assist with personal hygiene
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`resulting in skin breakdown to [James’s] body, failing to provide staff with
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`the knowledge, skills and competencies to care for residents with infection
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`and skin breakdown, and failing to prevent [James] from experiencing pain
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`and suffering.” Gayle also alleged: “Defendants ‘neglected’ [James] as that
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`term is defined in Welfare and Institutions Code, [section] 15610.57 in that
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`Defendants themselves, as well as their employees, failed to exercise the
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`degree of care that reasonable persons in a like position would exercise by
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`3
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`denying or withholding goods or services necessary to meet [his] basic needs.”
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`James died in August 2016.
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`The Petition to Compel Arbitration and Motion to Stay Proceedings
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`Silverado in its petition to compel arbitration pointed out that James
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`had designated Gayle as his attorney-in-fact. It claimed Gayle signed the
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`arbitration agreement as James’s representative or agent, and the agreement
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`applied to both James’s and Gayle’s causes of action.
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`
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`The arbitration agreement provides that “any claim or dispute . . .
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`arising out of the provision of services . . . including but not limited to . . . any
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`action for injury or death arising from negligence, intentional tort and/or
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`statutory causes of action (including but not limited to alleged violations of
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`Elder Abuse . . .) will be determined by submission to arbitration as provided
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`by [the FAA].” It states that “arbitration shall be conducted by one or more
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`neutral arbitrators in accordance with the procedures set forth in the [FAA],
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`Code of Civil Procedure [sic].” A separate provision of the agreement states
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`it “shall be governed by and interpreted under the [FAA], 9 U.S.C. sections
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`1-16.” The agreement provides it “shall be binding on all parties, including
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`their personal representatives, executors, administrators, successors,
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`guardians, heirs, and assigns.” The agreement also states: “Based on the
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`resident’s mental capacity, the term resident may include responsible party,
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`[power of attorney], guardian and/or conservator.” (Hereafter the mental
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`capacity provision; some capitalization omitted.)
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`
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`Gayle opposed the petition, arguing: (1) she did not have legal
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`authority to enter into a contract on James’s behalf; (2) Silverado presented
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`no evidence that James authorized her to make decisions for his healthcare;
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`(3) the arbitration agreement fails to comply with statutory requirements;
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`and (4) the codefendants were not parties to the arbitration agreement.
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`4
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`The trial court denied Silverado’s petition, finding that Gayle had
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`signed the arbitration agreement as James’s representative. The court
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`concluded Gayle had a separate right to maintain her wrongful death cause
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`of action in her individual capacity. Pointing out that Gayle did not allege
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`medical malpractice under section 1295, it stayed arbitration, reasoning
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`“there could be a possibility of inconsistent rulings” under section 1281.2.
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`DISCUSSION
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`I. Gayle’s Wrongful Death Claim Is Not Arbitrable
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`
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`Silverado contends that as Gayle signed the arbitration agreement,
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`“not only did [she] agree to be bound by [it] in her individual capacity, she
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`expressly agreed that [it] would be governed by the FAA and require that all
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`claims for [James’s] death, including those based on neglect as alleged in the
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`complaint, will be arbitrated.” Silverado relies on the arbitration
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`agreement’s mental capacity provision. Gayle argues that as she was not a
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`party to the arbitration agreement, she was not required to arbitrate her
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`wrongful death claim.
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`
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`A party generally cannot be compelled to arbitrate a dispute that he or
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`she has not agreed to resolve by arbitration. (Buckner v. Tamarin (2002) 98
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`Cal.App.4th 140, 142; Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990
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`[“The strong public policy in favor of arbitration does not extend to those who
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`are not parties to an arbitration agreement, and a party cannot be compelled
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`to arbitrate a dispute that he has not agreed to resolve by arbitration”].)
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`Whether an arbitration agreement is binding on a third party (e.g., a
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`nonsignatory) is a question of law subject to de novo review. (Suh v. Superior
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`Court (2010) 181 Cal.App.4th 1504, 1512.)
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`“Unlike some jurisdictions wherein wrongful death actions are
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`derivative, . . . section 377.60 ‘creates a new cause of action in favor of the
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`5
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`heirs as beneficiaries, based upon their own independent pecuniary injury
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`suffered by loss of a relative, and distinct from any the deceased might have
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`maintained had he survived.’ ” (Horwich v. Superior Court (1999) 21 Cal.4th
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`272, 283; see San Diego Gas & Electric Co. v. Superior Court (2007) 146
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`Cal.App.4th 1545, 1550-1551 [“Because a wrongful death action compensates
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`an heir for his or her own independent pecuniary losses, it is one for ‘personal
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`injury to the heir’ ”].)
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`We conclude that because Gayle signed the arbitration agreement as
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`James’s representative, she was a third party to the arbitration agreement
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`and therefore was not bound to arbitrate her separate wrongful death claim.
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`We rely on Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC
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`(2007) 150 Cal.App.4th 469, in which the surviving spouse and three adult
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`children of Ruth Fitzhugh sued a convalescent care facility for her wrongful
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`death. (Id. at pp. 471-472.) The surviving spouse had signed two arbitration
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`agreements with the facility as the decedent’s “legal representative” and
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`“agent.” (Id. at p. 472.) Although the arbitration agreements were binding
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`on the decedent’s heirs, the court concluded that the decedent’s surviving
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`spouse and adult children were not required to arbitrate their wrongful death
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`claims because no evidence showed that the spouse signed the agreements in
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`his personal capacity, and the adult children did not sign either agreement.
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`(Id. at p. 474.) Accordingly, there was “no basis to infer” that the spouse or
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`adult children “waived their personal right to jury trial on the wrongful death
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`claim.” (Ibid.)
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`The same is true here. Because Gayle signed the arbitration
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`agreement solely as James’s agent and not in her personal capacity, we have
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`no basis to infer that she agreed to arbitrate her wrongful death claim. In
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`context, the mental capacity provision making the arbitration clause binding
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`6
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`on a “resident,” the definition of which in certain circumstances included the
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`person granted a power of attorney, means only that the duty to arbitrate the
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`survivor claims is binding on James and other persons who would assert the
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`survivor claims on his behalf. The arbitration agreement does not indicate
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`an intent to bind third parties with claims independent of the survivor
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`claims, such as wrongful death claimants. We therefore conclude the court
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`did not err by denying the petition as to Gayle’s separate cause of action.
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`II. Silverado’s Causes of Action Are Arbitrable
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`Silverado contends the court erred in failing to grant its petition to
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`compel arbitration of all claims, given that the arbitration agreement
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`specifies the FAA procedures will apply to the arbitration. Gayle concedes
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`“the arbitration agreement states it is governed by the FAA,” but
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`nevertheless contends the court had discretion to deny Silverado’s petition
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`under section 1281.2, subdivision (c).
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`“In accordance with choice-of-law principles, the parties may limit the
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`trial court’s authority to stay or deny arbitration under the [California
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`Arbitration Act] by adopting the more restrictive procedural provisions of the
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`FAA.” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 157.) “[T]he FAA’s
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`procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the
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`contract contains a choice-of-law clause expressly incorporating them.” (Id.
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`at p. 174.) “The question, therefore, is whether the parties expressly
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`incorporated the FAA’s procedural provisions into their agreements.” (Id. at
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`p. 177; see also Cronus Investments, Inc. v. Concierge Services (2005) 35
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`Cal.4th 376, 387, 394 (Cronus) [“Our opinion does not preclude parties to an
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`arbitration agreement to expressly designate that any arbitration proceeding
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`should move forward under the FAA’s procedural provisions rather than
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`under state procedural law”], italics omitted.)
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`7
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`Under section 1281.2, subdivision (c), a court may stay or refuse to
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`compel arbitration of all or part of an arbitrable controversy when (1) “[a]
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`party to the arbitration agreement is also a party to a pending court action
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`. . . with a third party, arising out of the same transaction or series of related
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`transactions,” and (2) “there is a possibility of conflicting rulings on a
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`common issue of law or fact.” (§ 1281.2, subd. (c).) For purposes of the
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`statute, a third party is one who is neither bound by nor entitled to enforce
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`the arbitration agreement. (Thomas v. Westlake (2012) 204 Cal.App.4th 605,
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`612.) Section 1281.2, subdivision (c) “ ‘addresses the peculiar situation that
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`arises when a controversy also affects claims by or against other parties not
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`bound by the arbitration agreement.’ ” (Cronus, supra, 35 Cal.4th at p. 393.)
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`“When the trial court makes a discretionary decision under section 1281.2 [,
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`subdivision] (c), the reviewing court will affirm unless an abuse of discretion
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`is shown. . . . ‘The court’s discretion under section 1281.2, subdivision (c)
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`does not come into play until it is ascertained that the subdivision
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`applies.’ ” (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010)
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`186 Cal.App.4th 696, 709.)
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`“The question of whether the [Arbitration] Agreement incorporated the
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`FAA’s procedural provisions, thereby eliminating the trial court’s authority
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`under section 1281.2[, subdivision](c), ‘is a question of law involving
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`interpretation of statutes and the contract (with no extrinsic evidence). We
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`therefore apply a de novo standard of review.’ ” (Valencia v. Smyth, supra,
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`185 Cal.App.4th at pp. 161-162.)
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`Here, the arbitration agreement specifies that the FAA’s procedures
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`apply, and that the agreement shall be governed and interpreted under the
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`FAA. Accordingly, the court erred by not granting Silverado’s petition to
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`arbitrate James’s claims for elder abuse and wrongful death. Silverado is
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`8
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`entitled to the benefit of the arbitration agreement that governs James’s
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`claims. Moreover, in California, “the Legislature has expressed a ‘strong
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`public policy in favor of arbitration as a speedy and relatively inexpensive
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`means of dispute resolution.’ [Citations.] Consequently, courts will ‘ “indulge
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`every intendment to give effect to such proceedings.” ’ ” (Moncharsh v. Heily
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`& Blase (1992) 3 Cal.4th 1, 9.) As the California Supreme Court has
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`concluded: “Any doubts or ambiguities as to the scope of the arbitration
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`clause itself should be resolved in favor of arbitration.” (Cronus, supra, 35
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`Cal.4th at p. 386.)
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`We recognize that having concluded James’s claims are arbitrable but
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`Gayle’s claim is not, the parties may be required to participate in duplicative
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`proceedings. However, we are constrained by the parties’ arbitration
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`agreement. As the California Supreme Court has recognized, “the FAA itself
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`contains no provision designed to deal with the special practical problems
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`that arise in multiparty contractual disputes when some or all of the
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`contracts at issue include agreements to arbitrate. California has taken the
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`lead in fashioning a legislative response to this problem, by giving courts
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`authority to consolidate or stay arbitration proceedings in these situations in
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`order to minimize the potential for contradictory judgments.” (Cronus, supra,
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`35 Cal.4th at p. 392.) But that provision—section 1281.2, subdivision (c)—is
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`inapplicable here because the parties expressly agreed that the FAA applies
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`to their arbitration agreement. Another court in similar circumstances
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`stated, “While we may question the wisdom of the parties’ choice, and decry
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`the potential for inefficiency, delay, and conflicting rulings, the parties were
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`free to choose their arbitration rules. The court will not rewrite their
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`contract.” (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th
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`1110, 1122.)
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`9
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`Unlike the present arbitration agreement which contains provisions
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`stating the FAA’s procedural rules apply, the trial court relied on cases
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`containing no such provisions. (See Daniels v. Sunrise Senior Living, Inc.
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`(2013) 212 Cal.App.4th 674; Avila v. Southern California Specialty Care
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`(2018) 20 Cal.App.5th 835, 841 [“the agreement here does not even mention
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`the FAA, much less expressly adopt its procedural rules. Accordingly, the
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`FAA’s procedural rules do not apply here”]; and Bush v. Horizon West (2012)
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`205 Cal.App.4th 924, 926 [“we conclude the application of section 1281.2[,
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`subdivision] (c) was not preempted here by the [FAA]”).
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`DISPOSITION
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`The order denying the petition to compel arbitration is reversed. The
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`court is directed to enter a new order granting the petition to arbitrate only
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`as to James Gibbons’s separate claims. Each party is to bear its own costs on
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`O’ROURKE, J.
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`appeal.
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`WE CONCUR:
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`HALLER, Acting P. J.
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`GUERRERO, J.
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`10
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